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The Zika Virus: What Employers Should Not Do

Forbidding travel or requiring quarantines and medical evaluations are discouraged

#Dana Wilkie

By Dana WilkieFeb 3, 2016

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Updated 2/5/2016 with new information on the spread of the virus.

With growing concern over the Zika virus, the mosquito-borne disease possibly linked to birth defects, what should employers do about workers who plan business travel to affected countries or who are already working in these regions?

The disease primarily is transmitted by mosquitoes, but in rare instances it has been reported to be transmitted through blood transfusions and sexual contact.

The CDC now advises men with a pregnant partner to use condoms if they have traveled to an area with “active Zika virus transmission.” In addition, couples where a male partner who has traveled to an area with Zika transmission "may consider using condoms consistently and correctly during sex or abstaining from sexual activity," if they are concerned about sexual transmission of the virus, the CDC states.

Can pregnant workers, those of childbearing age or their partners say “no” to business travel to these regions and be protected from repercussions? Should companies discourage these same workers from visiting these countries on business, even if such assignments may advance their careers?

Never Forbid Just Women from Business Travel

First, companies cannot forbid pregnant employees—or women of child-bearing age—from traveling to countries where the virus is a concern, said Ben Huggett, a shareholder in the Philadelphia offices of Littler.

Huggett noted that in the case of Automobile Workers v. Johnson Controls, Inc. the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits companies from excluding or firing women from jobs that might pose reproductive health hazards.

“The Supreme Court found that such an exclusion constituted gender discrimination,” Huggett said. “Employers can and should educate employees about the risks and can encourage them to make a decision not to travel to an affected country, but they cannot prohibit only pregnant women from traveling there. To be legal, a travel prohibition would have to be equally applied to all employees.”

Women of Childbearing Age

Should a company try to ascertain which of its employees plan to become parents and therefore should be cautioned against traveling to infected regions?

Huggett said that excluding pregnant or childbearing-age women from any job assignment is gender discrimination, and “asking these questions would be prohibited,” as well. Excluding men with pregnant partners or who plan to become fathers from travel assignments is equally discriminatory.

Instead, employers should make sure all workers whose job duties may take them to areas that the CDC has identified as at-risk are educated on the Zika virus’s symptoms and modes of transmission, as well as on the precautions they should take to avoid mosquitoes and the risk of infection, said Michael Oliver Eckard, an attorney with Ogletree Deakins in Atlanta

“As in other situations, one of the biggest risks an employer faces here is that of an overreaction, particularly when an employer is attempting to forbid an employee from doing something that is a part of [their] job or interjecting itself into an employee’s health care decisions, even with the best of intentions.”

Scott Lockman is director of commercial insurance for Clements Worldwide, which provides insurance to expatriates and international organizations. He said employers actually have a duty to notify all employees about the Zika virus and to provide information about who could be at risk. A company that doesn’t share this information could face liability, he said.

“We do not recommend restricting communication to one group of staffers” about virus-infected regions, he said. “What if communication was focused on pregnant females, but a male employee came back and infected his wife who became pregnant?”

Eckard said employers should educate workers using the precautions recommended by the CDC. These precautions generally include avoiding mosquito bites by wearing long-sleeved shirts and long pants, sleeping indoors or under a mosquito net, and using appropriate insect repellants.

Employees Already in Infected Areas

Typically, employees who are already conducting business in infected countries need only be wary of workplaces near standing water—such as oil fields or fish farms where mosquitoes can be ubiquitous, Huggett said.

Employers should also not require nor pressure employees at risk to relocate, he said.

“Further, as a practical matter, this disease is rapidly spreading across the Caribbean, Central and South America, and is expected to spread into the United States this year. Thus, it would be very difficult to have someone relocate to a safe area,” he said.

Eckard said there is nothing wrong with offering—but not requiring—relocation for an employee in an infected area who worries about the risks.

That said, he cautioned employers against asking any employee whether she is pregnant or plans to become pregnant, or any man if his wife is pregnant or he plans to become a father. If employees volunteer such information, he said, it should be treated as confidential.

When Employees Refuse to Travel

Can an employee refuse to perform his or her job or travel based on concerns about Zika?

Under the Occupational Safety and Health Act, employees may refuse to work when there is a “reasonable belief that there is imminent death or serious injury,” Huggett said. Refusing to work without such a belief may result in disciplinary action by the employer.

“Because this is a public health issue which is not work related, some employers may expect all employees to continue to do their jobs, including travel to affected areas,” he said. “Although it is an emerging area of the law, pregnancy accommodation requirements under federal, state, and local laws may mandate that employers consider restructuring a job to exclude travel for a pregnant employee.”

Quarantines and Medical Examinations

Employers should not require a medical evaluation for someone who has traveled to an area with a Zika outbreak, nor impose a quarantine on such employees, Huggett said. The Americans with Disabilities Act (ADA), he said, can provide justification for an evaluation if the employer has a reasonable belief that a worker will pose a direct threat to others because of a medical condition. But because Zika is not transmitted from person to person in casual contact, the ADA standard is probably not met in most workplaces, he said.

As for quarantines, he said, “employers who isolate or quarantine such individuals when public health agencies have taken no such action risk liability under medical privacy laws, disability discrimination laws, state wage and hour laws, as well as potential race and national origin discrimination claims.”

Eckard agreed that employers should be cautious about requiring medical examinations or imposing quarantines.

“Such actions are generally not allowed by law except in very specific circumstances,” he said. “The risk of a Zika infection does not likely justify such actions now, and employers should carefully consult with HR and legal counsel before undertaking any such measures in a given circumstance.”